What the Centre said about marital rape

Brut India

While conceding that marital rape should be “illegal,” the Centre wasn’t in favour of criminalising it.

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00:00The Indian government told the Supreme Court that treating marital rape the same way as

00:04rape by a stranger would be excessively harsh, while assuring that alternative provisions

00:10already existed to protect women from it.

00:13The conversation around marital rape has been a long-standing one.

00:16Over 95% of women who endured sexual violence said their husbands or former husbands were

00:22the perpetrators, according to a 2019-2021 government survey.

00:27Marital rape has earlier been brought up in the Delhi High Court and the Karnataka

00:30High Court, and now the Supreme Court is hearing petitions seeking to criminalise it.

00:35There was a clause in the former Indian Penal Code which exempted husbands from being charged

00:40with rape.

00:41The exception 2 to section 375 of the IPC which dealt with rape said sexual intercourse

00:47or sexual acts by a man with his own wife, the wife not being under 15 years of age,

00:52is not rape.

00:53While the IPC was replaced by the Bharatiya Naiya Sanhita, this exception for husbands

00:58was retained in section 63.

01:00It now says sexual intercourse or sexual acts by a man with his own wife, the wife not being

01:06under 18 years of age, is not rape.

01:09In October 2024, the Centre went on record for the first time to say that this exception

01:15should not be struck down.

01:16It submitted an affidavit to the Supreme Court in response to petitions seeking criminalisation

01:21of marital rape.

01:23The affidavit said, in an institution of marriage, there exists a continuing expectation

01:29by either of the spouse to have reasonable sexual access from the other, which is not

01:34the case when it comes to a stranger who wants to perform sexual acts on someone.

01:39Then the affidavit clarified that a husband certainly does not have the fundamental right

01:44to violate the consent of the wife.

01:46While the Centre acknowledged that marital rape ought to be illegal and criminalised,

01:51it listed down provisions under IPC sections 354, 354A, 354B, 498A and the Domestic Violence

02:00Act as alternative recourse to marital rape.

02:03Now let's look at what other courts have said about marital rape previously.

02:07In 2022, a two-judge bench of the Delhi High Court gave a split verdict on the issue.

02:13One judge was of the view that exempting husbands who forcefully have sex with their wives from

02:17charges of rape is unconstitutional, while the other refused to criminalise marital rape,

02:23saying it was up to the legislature to consider different aspects and then change the law.

02:28The same year, the Karnataka High Court said the exception was regressive.

02:32The High Court Justice Nagprasanna had said,

02:35The age-old thought and tradition that the husbands are the rulers of their wives, their

02:40body, mind and soul should be effaced.

02:43A man is a man, an act is an act, rape is a rape, be it performed by a man, the husband,

02:49on the woman, wife, said the judgment.

02:51In the Parliament, however, former Women and Child Development Minister Smriti Irani held

02:56a different view.

02:57To condemn every man in this country as a rapist is not advisable in this August House.

03:03To condemn every marriage in this country as violent is not advisable.

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